USAGM Commercial Terms Addendum 832020.doc.docx

ADDENDUM TO COMPANY CONTRACT

This Addendum (the “Addendum”), effective as of the Effective Date designated in the USAGM/company purchase order, including the company contract, and any and all terms and conditions (“ this Contract”), is by and between the United States Agency for Global Media (further referred to as “ the USAGM “) and Company (“Company” ). In the event of any conflict between the language of this Addendum and this Contract, the language of this Addendum shall prevail and shall be enforceable against Company over the language of this Contract. In all other respects, however, this Contract shall remain in full force and effect in accordance with its language.

The following language is hereby incorporated into this Contract:

1) Government Entity. "USAGM" or “End User” within this Contract shall mean the USAGM itself and shall not apply to, nor bind (i) the individual(s) who utilize the Company Site or Services on USAGM's behalf, or (ii) any individual users who happen to be employed by, or otherwise associated with, the USAGM. Company will look solely to USAGM to enforce any violation or breach of this Contract by such individuals, subject to U.S. Federal law.

2) Law and disputes. This Contract is governed by U.S. Federal law. Any language purporting to subject USAGM to the laws of a U.S. state, U.S. territory, district, or municipality, or foreign nation, except where U.S. Federal law expressly provides for the application of such laws, is hereby deleted. Further, any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable U.S. Federal law is hereby deleted. Finally, any language prescribing a different time period for bringing an action than that prescribed by applicable U.S. Federal law in relation to a dispute is hereby deleted.

3) Continued performance. In the event Company believes the USAGM is in breach of this Contract, Company shall pursue their rights under the Contract Disputes Act or other applicable Federal statutes while continuing performance as set forth in Federal Acquisition Regulation (FAR) Clause 52.212-4(d) Disputes.

4) Arbitration. In the event of a claim or dispute arising under or relating to this Contract, binding arbitration shall not be used unless specifically authorized by the USAGM, and equitable or injunctive relief, including the award of attorneys’ fees, costs or interest, may be awarded against the U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).

5) Additional terms. This Contract may be only be changed by written agreement of the USAGM and Company, in accordance with FAR 52.212-4(c) Changes. The order of precedence clause of this Contract notwithstanding, any software license terms unilaterally revised by either party subsequent to award that are inconsistent with any material term or provision of this Contract are not enforceable. Terms may be included by reference using electronic means (e.g., via web links, click and accept, etc.). Such terms shall be enforceable only to the extent that:

a. when included by reference using electronic means, the terms are readily available at referenced locations; and

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b. the terms do not materially change government obligations; and c. the terms do not increase government prices; and

d. the terms do not decrease overall level of service; and

e. the terms do not limit any other USAGM rights addressed elsewhere in this Contract.

6) No automatic renewals. If any license or service is tied to periodic payment provided under this Contract (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express the USAGM approval.

7) Indemnification and Limitation on liability. Any clause requiring USAGM to indemnify and hold harmless Company is deleted. Any clause of this Contract requiring Company to defend or indemnify the USAGM is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516. Further, any clause of this Contract relating to limitation of liability in no way grants Company waiver from, release of, or limitation of liability pertaining to, any past, current, or future violation of U.S. Federal law.

8) Taxes or surcharges. Any taxes or surcharges which Company seeks to pass along to the USAGM will be governed by FAR 52.212-4(k) Taxes and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in this Contract or purchase order.

9) Reporting/Inspection and Audit. Any clause of this Contract permitting Company to audit the USAGM’s compliance with this Contract is hereby amended as follows:

a. Discrepancies found in an audit may result in a charge by Company to the USAGM. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government Contract or order. This charge, if disputed by the USAGM, will be resolved through the FAR Disputes clause at 52.212-4(d); no payment obligation shall arise on the part of USAGM until the conclusion of the dispute process; and

b. Any audit requested by Company will be performed at Company’s expense, without reimbursement by the USAGM.

10) Non-assignment. This Contract may not be assigned, nor may any rights or obligations thereunder be delegated, without the USAGM's prior approval, except as expressly permitted under the FAR clause at 52.232-23, Assignment of Claims.

11) Confidential information. If this Contract includes a confidentiality clause, such clause is hereby amended to state that neither this Contract nor the Federal Supply Schedule price list shall be deemed "confidential information." Issues regarding release of "unit pricing" will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in this Contract to the contrary, the USAGM may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this Contract.

12) Payment terms, invoicing, future fees, and penalties. All financial obligations of USAGM resulting from this Contract are subject to the availability of funds appropriated annually by the Congress of the United States of America. Any Contract terms that purport to establish payment terms or invoicing requirements that contradict the terms of this Contract or purchase order will be unenforceable. Future fees, such as attorneys’ fees, cost or interest, may only be awarded against the U.S. Government when expressly authorized by statute (e.g. Prompt Payment Act).

13) Intellectual Property.

(a) USAGM Intellectual Property. No provision in the Contract grants Company any rights whatsoever, including, but not limited to, ownership of patent, copyright, trademark or trade secrets (“Intellectual Property”) of the USAGM. Further, this Contract in no way transfers or grants any such intellectual property rights to Company, nor any other organization or individual.

(b) Company Intellectual Property. The Company shall not, without prior written permission of the Contracting Officer, incorporate any Company intellectual property not first produced under this Contract, unless the Contractor identifies such intellectual property and grants to the USAGM, or acquires on its behalf, an unlimited license for the USAGM to the Company intellectual property. Unlimited rights means the rights of the USAGM to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so.

(c) Intellectual Property Created During this Contract. Any and all intellectual property first created by Company, or both the USAGM and Company, in the performance of this Contract shall be owned by the USAGM and Company shall assign (with or without registration), or obtain the assignment of, the intellectual property rights to the USAGM or its designated assignee. Company shall not use, release, reproduce, distribute, or publish any intellectual property first produced in the performance of this Contract, nor authorize others to do so, without written permission of the Contracting Officer.

(d) Company shall indemnify the USAGM and its officers, agents, and employees acting for the USAGM against any liability, including costs and expenses, incurred as the result of the violation of trade secrets, copyrights, trademarks, patents, or right of privacy or publicity, arising out of the creation, delivery, publication, or use of any intellectual property furnished by Company under this Contract ; or any libelous or other unlawful matter contained in such intellectual property.

14) No Endorsement. Company agrees that the USAGM seals, trademarks, logos, service marks, trade names, and the fact that USAGM may have presence on the Company website and use its Services, shall not be used by Company in such a manner as to state or imply that Company's products or services are endorsed, sponsored, or recommended by the USAGM or by any other element of the Federal Government, or are considered by the USAGM or the Federal Government to be superior to any other products or services. Company agrees not to display any USAGM or government seals, trademarks, logos, service marks, and trade names on the Company's homepage or elsewhere on the Company website unless permission to do has been granted by the USAGM or by other relevant federal government authority. Company may list the USAGM name in a publicly available customer list on its homepage or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third party name.

15) Security. Company will, in good faith, exercise due diligence using generally accepted commercial business practices for information technology (IT) security, to ensure that systems that are operated and maintained in a secure manner, and that management, operational, and technical controls are employed to ensure security of systems and data. Recognizing the changing nature of technology, Company will continuously work with users to ensure that Company’s Site and Services meet users’ requirements for the security of systems and data. Company agrees to discuss implementing additional security controls as deemed necessary by USAGM to conform to the Federal Information Security Management Act (FISMA), 44 U.S.C. 3541 et seq., and other applicable laws and regulations.

16) Federal Records. The USAGM acknowledges that use of Company’s website and services may require management of Federal records. The USAGM and user-generated content may meet the definition of Federal records as determined by the USAGM. If the Company holds Federal records, the USAGM and the Company must manage Federal records in accordance with all applicable records management laws and regulations, including but not limited to the Federal Records Act (44 U.S.C. chs. 21, 29, 31, 33), and regulations of the National Archives and Records Administration (NARA) at 36 CFR Chapter XII Subchapter B). Managing the records includes, but is not limited to, secure storage, retrievability, and proper disposition of all Federal records including transfer of permanently valuable records to NARA in a format and manner acceptable to NARA at the time of transfer.

Company United States Agency for Global Media

By:

By:

Name: Name: Title: Title:

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